The question is not "do I have to right to get a patent on my
idea?" but "is progress better served by granting software patents or
not?". There is one school of thought that says if US patent system
flaws were fixed, software patents would be OK. Very few people with
experience doubt that the serious flaws in the US patent system could
be fixed, and note the flaws in other countries heading in the same
direction.

For proof of this, it was recently estimated that
Linux violates 283 patents.
Linux is mainly a reimplementation of Unix, a system which predated
software patents by a long way: these patents are therefore
"incidental" violations committed in the normal process of
implementing software. This does not bode well for production of
software: you will violate patents, you
won't know it, and your work is no longer yours to
control.

But let us assume, for a moment, that the levels of obviousness
and prior art are dramatically increased, and all these patents are
swept away. I can't see how such a thing is possible, but that's
another debate.

We are still left with the non-obvious, novel patents, such as in
the RProxy patent woes. Do we need patents
as an incentive for people to make progress in software? How much
damage are patents doing to software progress?

For the first question, the flourishing of software prior to its
patentability shows this clearly, such as the case of Dan Bricklan's
Visicalc (the first spreadsheet, not patented, now a market dominated
by Microsoft's Excel). This is because, unlike drugs or mechanical
devices, software is already protected by copyright: the extension of
patents to cover software made it the only area covered by both.
Indeed, copyright on software is far more powerful than on a book,
because the copyright holder can distribute only the binaries, not
their actual creation, leveraging into a monopoly on support and
fixes. With an estimated 10 million programmers in the world, a lack
of incentives is very hard to argue: this is a result of the barriers
to entry being so low. This low barrier also makes things like Open
Source development possible, and the Internet. It is hard to argue that
we would have been better off without these developments.

On the damage side of the equation, these same low barriers to
entry make the barriers produced by patents disproportionately
destructive. If it costs millions to produce a drug, patent and
lawyers fees don't make such a difference. It is the normal low
barriers of software which make ubiquitous infrastructure possible.
Once again, the rproxy problems illustrate the loss we face due to
patents in this area.